But first, to show I am in earnest, the cold drink in question:
Here, the petitioners are going DOWN, 5-4, with the dissenters being the usual three idiots, plus Roberts. The deciding vote will of course be Judge Kennedy. I base this COMPLETELY RELIABLE PSYCHIC PREDICTION on the following report from scotus.blog
In the midst of a discussion of context and the consequences of petitioners’ reading, Justice Kennedy raised a question that will surely receive a lot of scrutiny in the coming discussion of the case. He pointed out that, under petitioners’ reading, the federal government would be all but forcing states to create their own exchanges. That’s true not just for the headline reason covered by this case – that their citizens would be denied benefits – but for a very perceptive reason that Justice Kennedy added: namely, state insurance systems will fail if the subsidy/mandate system created by the statute does not operate in that particular state. For Kennedy, that seemed to make this case an echo of the last healthcare decision, where the Court concluded that it was unconstitutional coercion for the federal government to condition all Medicaid benefits in the state on expanding Medicaid therein.
Simply put, Kennedy expressed deep concern with the federalism consequences of a reading that would coerce the states into setting up their own exchanges to avoid destroying a workable system of insurance in the state. Justice Scalia attempted to respond on petitioners’ behalf that such concerns do not enter if the statute is unambiguous, but Justice Kennedy reiterated his concern with adopting a reading that would create such a “serious unconstitutional problem.”
Shorter version: if it's ambiguous,
Chevron deference takes over and respondents win, particularly if, as Judge Kennedy perhaps hints, a contrary result would raise serious constitutional issues. This is why alleged Judge Scalia chimed in with the point about the statute maybe being not ambiguous.
And apropos of nothing and in honor of both Dick Cheney and the greatest music decade ever, the 1970s, of course, I present Fabulous Poodles Bionic Man: